{¶1}
Since New Mexico became a state over a hundred years ago,
Article II, Section 13 of the New Mexico Constitution has
contained a clause providing that "[a]ll persons shall,
before conviction, be bailable by sufficient sureties, except
for capital offenses when the proof is evident or the
presumption great . . . ."

{¶2}
In 2009, the legislative and executive branches statutorily
abolished the penalty of capital punishment for first-degree
murder, the only remaining New Mexico crime carrying a
potential death sentence, for all offenses committed after
July 1, 2009. See NMSA 1978, § 31-18-14 (2009);
NMSA 1978 § 31-18-23 (2009); NMSA 1978, § 31-20A-2
(2009).

{¶3}
Defendant Muhammad Ameer is charged with first-degree murder
committed on or after July 1, 2009. In this appeal from a
district court order applying the capital offense exception
to the constitutional right to bail and denying Defendant any
form of pretrial release, we hold that first-degree murder is
not currently a constitutionally defined capital offense in
New Mexico that would authorize a judge to categorically deny
release pending trial.

{¶4}
Following briefing and oral argument, we issued a bench
ruling and written order reversing the district court's
detention order that had been based solely on the capital
offense exception. See Order, State v.
Ameer, S-1-SC-36395 (May 8, 2017). In the same order we
remanded with instructions to the district court to consider
the State's unaddressed request for detention under the
2016 amendment to Article II, Section 13 of the New Mexico
Constitution, allowing courts a new and broader
evidence-based authority to deny pretrial release for any
felony defendant "if the prosecuting authority . . .
proves by clear and convincing evidence that no release
conditions will reasonably protect the safety of any other
person or the community." N.M. Const. art. II, §
13. We also advised that this precedential opinion would
follow.

I.BACKGROUND

{¶5}
Defendant was indicted for, among other offenses,
first-degree murder in violation of NMSA 1978, Section
30-2-1(A) (1994), an offense that had been statutorily
defined as a "capital felony" before capital
punishment was abolished in July 2009 and which is still
statutorily referred to by that term, although it now carries
a maximum penalty of life imprisonment instead of a death
sentence for offenses committed on or after July 1, 2009.
See § 31-20A-2. The date of Defendant's
alleged offense was March 19, 2017, and his alleged crime
therefore cannot result in capital punishment.

{¶6}
The State moved to detain Defendant pending trial under the
new detention authority provided by the November 2016
amendment to Article II, Section 13 in felony cases where
"no release conditions will reasonably protect the
safety" of others. N.M. Const. art. II, § 13
(amendment effective Nov. 8, 2016). But instead of relying on
that new authority, the district court ordered Defendant
detained on the basis of the older capital offense exception
to the constitutional right to pretrial release.

{¶7}
Defendant appealed the pretrial detention order to this
Court.

II.DISCUSSION

A.Jurisdiction and Standard of Review

{¶8}
The New Mexico Supreme Court is vested with exclusive
jurisdiction over interlocutory appeals in criminal cases
where a defendant faces possible life imprisonment or
execution. State v. Brown, 2014-NMSC-038, ¶ 10,
338 P.3d 1276 (citing State v. Smallwood,
2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821);
seealso N.M. Const. art. VI, § 2
(granting this Court exclusive jurisdiction over appeals from
final district court judgments "imposing a sentence of
death or life imprisonment"); NMSA 1978, §
39-3-3(A)(2) (1972) (permitting an appeal from a district
court "order denying relief on a petition to review
conditions of release"); Rule 12-204 NMRA (providing
procedures for interlocutory appeals from orders denying
release, effective for all cases pending or filed on or after
July 1, 2017).

{¶9}
The final responsibility for interpreting the New Mexico
Constitution also rests with this Court, "the ultimate
arbiter[] of the law of New Mexico." State ex rel.
Sernav. Hodges, 1976-NMSC-033, ¶ 22, 89
N.M. 351, 552 P.2d 787, overruled on othergrounds by State v. Rondeau, 1976-NMSC-044, ¶
9, 89 N.M. 408, 553 P.2d 688. In fulfilling that
responsibility, we review all questions of constitutional and
statutory interpretation de novo. State v. Boyse,
2013-NMSC-024, ¶ 8, 303 P.3d 830. "[O]ur primary
goal is to give effect to the intent of the Legislature which
proposed [the constitutional provision] and the voters of New
Mexico who approved it." Block v.Vigil-Giron, 2004-NMSC-003, ¶ 4, 135 N.M. 24,
84 P.3d 72. And we are guided by the principle that
"[t]erms used in a [c]onstitution must be taken to mean
what they meant to the minds of the voters of the state when
the provision was adopted." Flaskav.
State, 1946-NMSC-035, ¶ 12, 51 N.M. 13, 177 P.2d
174 (internal quotation marks and citation omitted).

B.Historical Meaning of "Capital Offense" as
a Crime That Is Punishable by Capital Punishment

{¶10}
Since at least the late 1400s, the term "capital"
has meant "[a]ffecting, or involving loss of, the head
or life, " or "[p]unishable by death." See
The OxfordEnglish Dictionary vol. II (2d ed.
1989) at 862; see also Black's Law Dictionary
(10th ed. 2014) at 250 (defining "capital" as
"[p]unishable by execution; involving the death
penalty"). The term derives from the Latin word
"caput, " meaning head. Merriam-Webster's
Third New International Dictionary of the English Language,
Unabridged (1961) at 332. See Commonwealth ex rel.
Castanaro v. Manley, 60 Pa. D. & C. 194, 196
(Lackawanna Cty. 1947) ("The words, []'capital
offenses', as used in the [Pennsylvania] Constitution
clearly mean offenses for which the death penalty may be
imposed.").

{¶11}
This was the common understanding of capital punishment at
the time New Mexico became part of the United States and
drafted its constitution to follow the lead of Pennsylvania
and most other states, where the capital offense exception to
the right of bail had become part of "almost every state
constitution adopted after 1776." June Carbone,
Seeing Through the Emperor's New Clothes: Rediscovery
of Basic Principles in the Administration of Bail, 34
Syracuse L. Rev. 517, 531-32 (1983); Brown,
2014-NMSC-038, ¶¶ 19, 26.

{¶12}
A substantial majority of jurisdictions across the country
addressing the same constitutional interpretation issue
accordingly have held that an offense is a nonbailable
capital offense only if it may be punished by imposition of
the death penalty. See Martin v. State, 517 P.2d
1389, 1394, 1397 (Alaska 1974) (noting that where the
constitution authorizes pretrial detention only for capital
offenses, "a legislative enactment expressly permitting
the detention of persons [charged with noncapital offenses]
without right to bail would be unconstitutional unless a
constitutional amendment were adopted"); In re
Tarr, 508 P.2d 728, 729 (Ariz. 1973) ("The United
States Supreme Court has abolished the death penalty in
statutes like Arizona's . . . and has therefore abolished
'capital offenses' in Arizona."); Kendrick
v. State, 24 S.W.2d 859, 860 (Ark. 1930) ("[T]he
offense charged was a felony, punishable only by imprisonment
in the penitentiary, and the accused had the legal right to
give bond for his appearance."); State v.
Menillo, 268 A.2d 667, 668 (Conn. 1970) ("But since
the penalty for murder in the first degree could be death, a
first-degree murder indictment constitutes an indictment for
an offense punishable by death, that is, a capital
offense."); Adams v. State, 48 So. 219, 224
(Fla. 1908) (in banc) ("A 'capital crime' is one
for which the punishment of death is inflicted. The crime of
murder in the second degree is punished by imprisonment in
the state prison for life, and is not a capital
crime."); Caesar v. State, 57 S.E. 66, 67 (Ga.
1907) ("If under any circumstances the penalty of death
can be inflicted, the offense is capital . . . . If under no
circumstances the death penalty can be inflicted, the offense
is not capital."); State v. Jiminez, 456 P.2d
784, 788 (Idaho 1969) ("[Because] murder in the second
degree [is] a crime not punishable by death . . ., [the
statute], which provides that capital offenses are not
bailable, could not operate automatically to prevent the
admission of appellant to bail." (footnote omitted));
People ex rel. Hemingway v. Elrod, 322 N.E.2d 837,
840 (Ill. 1975) ("[A] capital case is one in which the
death penalty may, but need not necessarily, be
inflicted."); State v. Christensen, 195 P.2d
592, 596 (Kan. 1948) ("'Capital crime, felony or
offense' . . . do[es] not include an offense in which
death in no event can be inflicted."); Duke v.
Smith, 253 S.W.2d 242, 243 (Ky. Ct. App. 1952)
("The accused is entitled to bail as a matter of
unqualified right when charged with any criminal offense
except one that may be punished by death[, and i]n a capital
offense he has such right unless the Commonwealth shall
produce . . . evidence sufficient to create great presumption
of guilt."); Fredette v. State, 428 A.2d 395,
403 (Me. 1981) ("[A]n offense is 'capital' only
if it is currently punishable by death; it does not remain
'capital' because at some previous time it had been
punishable by death."); McLaughlin v. Warden of
Baltimore City Jail, 298 A.2d 201, 201 (Md. Ct. Spec.
App. 1973) ("As Maryland law presently exists, there is
no capital crime because the death penalty is not
mandatory."); Commonwealth v. Ibrahim, 68 N.E.
231, 232 (Mass. 1903) ("A capital crime is one
punishable with the death of the offender."); State
v. Pett, 92 N.W.2d 205, 207 (Minn. 1958) ("Murder
in the first degree is not a capital offense when it cannot
be punished by death."); Ex parte Welsh, 162
S.W.2d 358, 359 (Mo.Ct.App. 1942) ("A capital offense is
one which is punishable-that is to say, liable to
punishment-with death."); Edinger v. Metzger,
290 N.E.2d 577, 578 (Ohio Ct. App. 1972) ("A
'capital offense' has been uniformly defined as one
where death may be imposed."); Commmonwealth v.
Truesdale, 296 A.2d 829, 832 (Pa. 1972) ("[T]he
constitutional phrase 'capital offense' is a
definition of a penalty, i.e., the death penalty, rather than
a definition of the crime."), superseded by
constitutional amendment, Pa. Const. art. 1, § 14
(amended 1998); City of Sioux Falls v. Marshall, 204
N.W. 999, 1001 (S.D. 1925) ("By virtue of our
constitutional provision . . ., and since the abolition of
capital punishment, bail before conviction is a matter of
absolute right in all cases."); Butt v. State,
175 S.W. 529, 530 (Tenn. 1915) ("[I]n this state, it is
competent for . . . this court on appeal, to disregard the
finding of mitigating circumstances by the trial jury and to
order the infliction of the death penalty. Hence there
continues to be involved a 'capital offense' within
the meaning of the constitutional provision now under
consideration."); Ex parte Contella, 485 S.W.2d
910, 912 (Tex. Crim. App. 1972) ("[M]urder, when
committed by a person under seventeen years of age, is not a
capital offense because the death penalty cannot be imposed
in such cases."); In rePerry, 19 Wis.
676, 676 (1865) ("[S]ince the abolition of capital
punishment in this state, persons charged with murder are in
all cases bailable [under the Wisconsin constitutional
provision, 'All persons shall, before conviction, be
bailable . . . except for capital offenses when the proof is
evident or the presumption great.']"); State v.
Crocker, 40 P. 681, 685 (Wyo. 1895) ("[Because
'a]ll persons shall be bailable by sufficient sureties,
except for capital offenses when the proof is evident or the
presumption great, ' [t]he right to furnish bail with
sufficient sureties . . . arises in favor of any person
accused of crime, and before conviction, absolutely and
without exception in cases of all crimes not punishable with
death.").

{¶13}
This view, that crimes are nonbailable capital offenses only
when they carry the possibility of imposition of the death
penalty on conviction, has been referred to as the
penalty theory. See Roll v. Larson, 516
P.2d 1392, 1393 (Utah 1973). The penalty theory rests on the
reasoning that no amount of bail is likely to secure a
defendant's voluntary appearance at a trial that may
result in a death sentence. See State v. Johnson,
294 A.2d 245, 250 (N.J. 1972) ("In a choice between
hazarding his life before a jury and forfeiting his or his
sureties' property, the framers of the many State
Constitutions felt that an accused would probably prefer the
latter. But when life was not at stake and consequently the
strong flight-urge was not present, the framers obviously
regarded the right to bail as imperatively present.");
Ex parte Dennis, 334 So.2d 369, 371 (Miss. 1976)
("The prevailing reason for denying bail in capital
cases was that pretrial incarceration was necessary for the
accused's appearance at trial since it was thought that
an accused would forfeit his bond by flight rather than risk
death by a jury verdict.").

C.
The Post-Furman Classification Theory

{¶14}
In its opposition to Defendant's appeal in this case, the
State argues that a capital offense is not necessarily one
punishable by death but is instead a crime so categorically
severe that the Legislature may statutorily designate an
offense as "capital" and place it in a nonbailable
constitutional capital offense category even if capital
punishment for the offense has been statutorily abolished. In
support, the State asks us to join a minority of
jurisdictions that purportedly now follow what has been
called a classification theory, citing United
States v. Martinez, 505 F.Supp.2d 1024, 1027-29, 1033
(D.N.M. 2007); Tribe v. District Court in & for
County of Larimer, 593 P.2d 1369, 1370-71 (Colo. 1979)
(en banc); and Hudson v. McAdory, 268 So.2d 916,
920-22 (Miss. 1972). The State argues that courts in
California, Colorado, Nevada, Mississippi, Louisiana,
Washington, Utah, Alabama, Oklahoma, and West Virginia have
adopted a classification theory and relies on a brief summary
statement to that effect in Tribe, 593 P.2d at
1370-71.

{¶15}
But none of those cited cases addressed the issue before us,
whether a legislature can abolish capital punishment while
still calling penitentiary-only crimes "capital"
for the purpose of denying bail under a capital offense
exception to a constitutional guarantee of pretrial release.
In fact, neither Tribe nor Martinez
involved a pretrial detention issue or any constitutional
interpretation at all.

{¶16}Martinez was a federal prosecution for a murder
occurring in what is defined in 18 U.S.C. § 1151 (2006,
2012) as "Indian country, " and the
nonconstitutional issue in the opinion concerned the
applicability of a federal statute, 18 U.S.C. § 3281
(1994), providing that no statute of limitations would bar
prosecution of "any offense punishable by death."
See Martinez, 505 F.Supp.2d at 1025-26. The
defendant was indicted for first-degree murder, which is
statutorily punishable "by death or by imprisonment for
life" under 18 U.S.C. § 1111(b) (1994). See
Martinez, 505 F.Supp.2d at 1025-26. The issue in
Martinez was whether an Indian tribe's
exercising its right under 18 U.S.C. § 3598 (1994) to
opt out of the federal death penalty made the federal
first-degree murder statute no longer an offense
"punishable by death" for statute of limitations
purposes. See Martinez, 505 F.Supp.2d at 1026-27.
Martinez cited with approval a line of federal
authority holding that whether a crime is considered
punishable by death or is a capital offense "depends on
whether the death penalty may be imposed for the crime under
the enabling statute, not on whether the death penalty is in
fact available for defendants in a particular case."
Id. at 1029 (internal quotation marks and citation
omitted). Because Congress had authorized death as a
potential sentence for first-degree murder, it had
statutorily made the offense a capital offense punishable by
death for purposes of statutes of limitations. See
id. at 1034.

{¶17}Tribe addressed the applicability of a provision of
the Colorado Rules of Criminal Procedure requiring that
juries be sequestered during trial in a capital case,
following judicial invalidation of capital punishment
statutorily prescribed for the first-degree murder crime with
which the defendant was charged. See 593 P.2d at
1370. The Colorado Supreme Court clarified that the question
of whether the crime was a capital case depended on whether
"the pertinent [s]tatute itself provided that [the]
death penalty could be administered under the facts
alleged." Id. at 1371. Because the Colorado
statute still classified first-degree murder as an offense
for which capital punishment could be imposed, see
Colo. Rev. Stat. § 18-1-105(1)(a) (1979 Colo. Sess. Laws
at 669), the court held that a prosecution for first-degree
murder was a capital case in which jurors had to be
sequestered, see Tribe, 593 P.2d at 1370-71.

{¶18}
Our research reveals that no case in any jurisdiction,
including those referenced in either Martinez or
Tribe, has held that a constitutional provision
guaranteeing bail in all but "capital offenses"
will permit bail to be denied after a legislative
abolition of capital punishment for an offense, as has
occurred in New Mexico. The cases referenced in
Tribe dealt with defendants charged under statutes
continuing to prescribe capital punishment on their face
after the actual imposition of capital punishment had been
judicially barred in 1972 when the Eighth Amendment
holding in Furman v. Georgia, 408 U.S. 238, 239
(1972), effectively precluded imposition of the death penalty
under all then-existing state capital punishment statutes.
Because the State's position relies so heavily on the
purported adoption of a classification theory by ten states,
we closely examine the law in each of those jurisdictions.

1.California

{¶19}People v. Anderson, 493 P.2d 880, 899 n.45 (Cal.
1972), superseded byconstitutional
amendment, Cal. Const. art. I, § 27 (amended 1972,
see 1972 Cal. Stat. at A-17), was cited by
Tribe, 593 P.2d at 1371, in support of the
capital-offense classification theory. The first expression
in American jurisprudence of the theory appeared in a
footnote in Anderson, 493 P.2d at 899 n.45. After
holding that California's death penalty statutes violated
the cruel and unusual punishment clause of the California
Constitution, the California Supreme Court added a brief
footnote, without the citation of any precedent in California
or any other jurisdiction and without any further
explanation:

The issue of the right to bail in cases in which the law has
heretofore provided for the death penalty has been raised for
the first time by the People and amici curiae on petition for
rehearing. Although this question was never an issue in this
case, we deem it appropriate to note that article I, section
6, of the California Constitution and section 1270 of the
Penal Code, dealing with the subject of bail, refer to a
category of offenses for which the punishment of death could
be imposed and bail should be denied under certain
circumstances. The law thus determined the gravity of such
offenses both for the purpose of fixing bail before trial and
for imposing punishment after conviction. Those offenses, of
course, remain the same but under the decision in this case
punishment by death cannot constitutionally be exacted. The
underlying gravity of those offenses endures and the
determination of their gravity for the purpose of bail
continues unaffected by this decision. Accordingly, to
subserve such purpose and subject to our future consideration
of this issue in an appropriate proceeding, we hold that they
remain as offenses for which bail should be denied in
conformity with article I, section 6, of the Constitution and
Penal Code section 1270 when the proof of guilt is evident or
the presumption thereof great.

Anderson, 493 P.2d at 899 & n.45.

{¶20}
Subsequent developments explained the import of this cryptic
footnote. Within months after the decision in
Anderson, the voters of California approved a
constitutional amendment to reinstate capital punishment and
effectively supersede Anderson. See Strauss v.
Horton, 207 P.3d 48, 90 (Cal. 2009) (observing that the
1972 constitutional amendment restored capital punishment,
"subject to legislative amendment or repeal by statute,
initiative, or referendum" (internal quotation marks and
citation omitted)), abrogated on other grounds,
Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584
(2015). In the forty-five years since that state
constitutional amendment reinstating the death penalty,
California courts have consistently interpreted the
"capital crimes" provisions of the California
Constitution-see Cal. Const. art. I, § 12
(amended 1974, 1982, 1994); Cal. Const. art. I, § 28
(amended 1982, 2008)-to mean crimes which the legislature has
considered so serious as to permit imposition of capital
punishment. Less than two years after Anderson was
decided, and after the California legislature reclassified
offenses eligible for the death penalty under the authority
of the 1972 constitutional amendment, see Cal. Penal
Code § 190.2 (1973 Cal. Stat. at 1297, 1299-1300), the
California Supreme Court clarified its Anderson
footnote to explain that what makes an offense capital is
statutory authorization of the death penalty for its
commission, see In re Boyle, 520 P.2d 723, 725 (Cal.
1974) (explaining that "[n]othing we said in footnote 45
was intended to govern a situation in which the Legislature
acts to declare a new and different class of 'capital
offenses'").

{¶21}
Because the murder crimes with which the defendants in
Boyle were charged were statutorily punishable only
by life imprisonment and not punishable by capital punishment
in the absence of a killing for hire or other statutory
"special circumstances" of Cal. Penal Code Section
190.2 (1973), the California Supreme Court held that the
charged crimes could not be considered "capital
offenses" in the constitutional sense. Boyle,
520 P.2d at 724. As the court noted, "[t]he
constitutional provision does not itself define the term; it
simply withholds in such cases a constitutional right to
bail, and impliedly grants to the Legislature the power to
implement that exception, " which the legislature did
when it "delineated the class of such cases by
substantive provisions imposing the death penalty for
specified offenses." Id. at 725.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;{&para;22}
No California case has ever taken the position that the
legislature may classify a non-capital-punishment crime as
capital in the constitutional sense and thereby justify
denial of pretrial release. In fact, post-Anderson
cases have repeatedly emphasized that the reference to
capital crimes in the California Constitution applies to
crimes which the legislature has considered so serious as to
permit imposition of capital punishment. See, e.g.,
People v. Superior Court, 25 Cal.Rptr.2d 38, 39
(Cal.Ct.App. 1993) ("It is well established a capital
offense is one which carries the maximum possible penalty of
death."); In re Bright, 17 ...

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